On November 29, 2007, the Centers for Medicare & Medicaid Services (CMS) made public a list of 54 nursing homes – called Special Focus Facilities (SFFs) – that provide especially poor quality care to their residents.  The CMS list includes no more than three facilities in any state; California, with 1400 nursing homes, has one SFF on the list.  The publicly-disclosed list was part of a larger list of 128 facilities that were designated SFFs as of October 2007.  Nationwide, there are more than 16,000 nursing facilities.  CMS's news release did not explain how the 54 SFFs were selected for public disclosure. 

Background of SFFs

The SFF program was originally created as part of President Clinton's Nursing Home Initiative, announced in July 1998.  The purpose of the program was to focus additional survey attention on poorly-performing facilities; two facilities selected in each state would receive a second standard survey each year. 

Revisions to the SFF program were implemented on December 11, 2004.  These changes included increasing the total number of SFFs, using three years of poor survey performance to select SFFs, and requiring enforcement for SFFs that did not make significant progress after an additional 18 months (three SFF surveys).  Another revision made to the program on November 2, 2007 (and revised December 7, 2007) required that administrators, owners, and Boards of Directors be notified of a facility's designation as an SFF and included CMS's promise to make public a list of SFFs that did not make significant improvement in the first survey following their initial designation as an SFF.   

Backlash to the Release of 54 SFF Names

On December 5, the Des Moines Register reported that CMS, which refused to disclose the full list of SFFs, had shared the complete list "with lobbyists for the nursing home industry," specifically, with the American Health Care Association (AHCA).  A spokeswoman for AHCA "said the association cannot publicly release its copy of the list because of restrictions imposed by the Centers for Medicare & Medicaid Services," leading The Des Moines Register to observe, "It's unusual for a government agency charged with protecting the public to give information to an industry it regulates while withholding that same information from the public."

Interest in SFFs escalated.  In a December 12 letter, Senator Barak Obama (D, IL) and eight Senate co-signers asked Health and Human Services Secretary Michael Leavitt to disclose the identity of all 128 Special Focus Facilities (SFFs) or to provide clear guidance to states that they may disclose the information to the public.  Citing reports in the press that the complete list of SFFs has been provided to AHCA, the Senators wrote, "Providing information about poorly performing nursing homes to the lobbyists who represent those facilities, and not to the senior citizens who would most benefit from this information, is outrageous."

Senator Hillary Clinton (D, NY) with two Senate co-signers has introduced legislation, the "Nursing Home Quality and Transparency Act," (S. 2480) to require public disclosure of all facilities in the SFF program.

Discussion

Under the SFF program, CMS gives states a list of facilities that meet the criteria for SFF and allows them to designate which facilities will receive increased state monitoring.  At its best, the SFF program identifies some of the facilities that are providing the poorest care and devotes some additional survey resources to them in an effort to get them to achieve and maintain substantial compliance with federal standards of care. 

However, even the full list of 128 facilities is far less than 1% of nursing facilities nationwide, and many more facilities provide poor care to their residents.  The Center for Medicare Advocacy (the Center) is concerned that disclosure of SFFs may suggest to the public, inaccurately, that these are the only facilities that families and prospective residents should avoid. 

Over the past year, the Center has also been concerned that facilities that fail to "graduate" from the SFF program are being terminated from the Medicare program and that such terminations, and the facility closures that frequently result, are harmful to residents.  While recognizing that closures may sometimes be necessary, the Center endorses a more comprehensive approach to enforcement of nursing home standards that relies less on closure and more on intermediate sanctions.  As the 1987 Nursing Home Reform Law mandates, the Center supports a quicker, more effective use of the full range of intermediate remedies so that providers, not residents, are sanctioned.

Resources

CMS's news release, "CMS Publishes National List of Poor-Performing Nursing Homes, Key Tool for Families Seeking Quality Care" (Nov. 29, 2007),  http://www.cms.hhs.gov/apps/media/press/release.asp?Counter=2672&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numDays=
3500&srchOpt=0&srchData=&srchOpt=0&srchData=&keywordType=All&chkNewsType=1%2C+2%2C+3%2C+4%2C+5&intPage=&showAll=&pYear=&year=&desc=&cboOrder=date

The list of 54 SFFs, http://www.cms.hhs.gov/CertificationandComplianc/Downloads/SFFList.pdf

CMS, "Improvements to the National Special Focus Facility (SFF) Program for Nursing Facilities – Notice Requirements," S&C-08-02 (Nov. 2, 2007),

http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter08-02.pdf

CMS, "Improving Enforcement via the Special Focus Facility Program for Nursing Homes," S&C-05-13 (Dec. 16, 2004),

http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter05-13.pdf

Clark Kauffman, "Names of care centers withheld from public, given to lobbyists," The Des Moines Register (Dec. 5, 2007), http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=2007712050373
 

Senator Obama's letter, is co-signed by Senators Jeff Bingaman (D, NM), Dick Durbin (D, IL), Tom Harkin (D, IA), Edward Kennedy (D, MA), Joseph Lieberman (I, CT), Evan Bayh (D, IN), Bernard Sanders (I, VT), and Ron Wyden (D, OR), http://obama.senate.gov/press/071212-obama_harkin_ke/

The Nursing Home Reform Law,
 

42 U.S.C. §§1395i-3(a)-(h), 1396r(a)-(h), Medicare and Medicaid, respectively.  The enforcement provisions are at 42 U.S.C. §§1395i-3(h), 1396r(h).

"Nursing Home Quality and Transparency Act"
(Introduced in Senate), S 2480 IS.  http://thomas.loc.gov/cgi-bin/query/z?c110:S.2480: